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The EPA's Clean Power Plan 'Victory' Isn't The Slam Dunk It Seems To Be

The Environmental Protection Agency is probably feeling pretty good about itself after its big climate “win” in federal court on Tuesday. A three-judge, conservative-leaning panel of the D.C. Circuit Court of Appeals dismissed various state and industry challenges to the legality of the EPA’s proposed Clean Power Plan, a rule that would monumentally restructure the nation’s electric system to reduce carbon dioxide emissions.

On its face, the court’s decision in Murray Energy Corporation v. EPA looks like an unequivocal slam dunk for the EPA: The court threw out all of the challenges as premature.  And while the court did not address the fundamental question of whether or not the EPA has the power to adopt its Clean Power Plan, a loss for the EPA at this early stage of the rulemaking would have been catastrophic.

NRG Energy’s Joliet Station power plant in Illinois. (Photo by Scott Olson/Getty Images)

But the truth–which I suspect the EPA knows but is keeping to itself–is that the challengers likely got what they wanted with this case back on March 18.  That’s the date the court released the names of the three judges who presided over the case.

Out of 17 judges that sit on the court, nine were appointed by a Democrat president.  Yet the three-judge panel that was randomly selected for the Murray case included three Republican appointees: Justices Kavanaugh, Griffith and Henderson.  The probability of that occurring is about 8%.

At this point, you’re probably asking yourself why the makeup of the Murray panel matters. The reason is simple: According to the D.C. Circuit’s Handbook of Practice and Internal Procedures, this three-judge panel also gets to decide whether–in “the interest of judicial economy”–it should be assigned as the panel of judges for future related cases, such as the upcoming challenges to the final Clean Power Plan. In other words, this same conservative-leaning panel should have the power to choose whether or not it wants to hear the actual challenges to the EPA’s final Clean Power Plan, which will be filed in droves shortly after the EPA finalizes it in August.

Because the briefing and oral argument in the Murray case involved substantive legal questions that the judges had to read and consider, the Murray panel would be completely justified in deciding that judicial economy is best served by staying with the case. And two of the three judges on the panel, Kavanaugh and Griffith, have regularly been thorns in the EPA’s side.  In 2012, the two stayed and then ultimately overturned the EPA’s Cross-State Air Pollution Rule, and that same year, Judge Kavanaugh filed a dissent in a separate case arguing that greenhouse gases are not air pollutants.

The petitioners may have been premature in bringing their lawsuit (or as the court put it, “champing at the bit to challenge EPA’s anticipated rule”).  They may have been legally wrong to do so (since, after all, they were asking the court to review the legality of a proposed rule for the first time ever).

But in the end, the petitioners may have unwittingly gotten something out of this case that’s almost as good as a win: a sympathetic panel to rule on the legality of the soon-to-be-issued final Clean Power Plan.

Brian H. Potts's picture

Thank Brian H. for the Post!

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Keith Pickering's picture
Keith Pickering on Jun 12, 2015

The only thing this really means is that the court challenges will be longer and more expensive than they have to be, if the panel rules against EPA. Because you can bet your boots that the government will appeal any adverse ruling, and that’s especially true if they suspect bias in the judges, as they are certain to here.

Jim Kennerly's picture
Jim Kennerly on Jun 14, 2015

There’s really nothing to glean from this – and whether a judge personally thinks carbon is an air pollutant is irrelevant. The Court already made that call in Mass. V. EPA with almost the same liberal-conservative makeup, and they’ve shown no sign of changing their minds in subsequent decisions.

in addition, there’s really not much controversial about the Clean Power Plan from a legal perspective, given that its flexibility is going to trigger Chevron deference. The Court was much more permissive in the case of the Tailoring Rule – the government won 7-2.

So I don’t really see why the petitioners really think this has much chance of success. Besides, at this point, the new CPP is likely so mild in terms of targets that it probably wont even cause a lot of stranded utility costs, so all it will hurt is Murray and the rest of an already-dying industry.

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